Commonwealth v. Gonzalez

OPINION BY

McEWEN, P.J.E.:

Appellant, Abraham Gonzalez, here appeals from the judgment of sentence to serve a term of imprisonment of from two and one-half years to six years, a sentence imposed after he pleaded guilty to one count of possession of a controlled substance (heroin) with intent to deliver. We vacate the judgment of sentence and remand for resentencing.

The germane facts of this case are not in dispute. Appellant was arrested in March of 2006 based upon probable cause of the sale of drugs in Philadelphia. At the time of his arrest he had in his possession 52 individual “packets” of heroin that had an aggregate weight of 1.216 grams. On September 11, 2008,¹ appellant entered a negotiated plea of guilty to a single count of possession of a controlled substance with intent to deliver. A pre-sentence report was prepared, which indicated, inter alia, that appellant had a prior conviction for burglary — graded as a felony of the second degree (hereinafter referred to as an F2 burglary). The sentence to serve a term of imprisonment of from two and one-half years to six years was imposed by the trial judge on January 23, 2009. The judge simultaneously denied appellant’s request to have the sentence designated as a Recidivism Risk Reduction Incentive (RRRI)² minimum sentence, a designation that would have enabled appellant to reduce the term of his minimum sentence if he complied with all the obligations of certain rehabilitative programs. Appellant filed a petition to modify sentence, which was denied, and this appeal followed.

Appellant, in the brief filed in support of this appeal, advances the argument that “[t]he sentencing judge erred by not imposing an [RRRI] minimum sentence based upon his erroneous belief that a prior F2 burglary automatically disqualified [appellant] from receiving the benefit of that statutory program.” Brief of Appellant, p. 9.

We commence our examination of the relevant statutory language mindful of the well settled rule that “[statutory interpretation implicates a question of law. Thus, our scope of review is plenary, and our standard of review is de novo.” Commonwealth v. Van Aulen, 952 A.2d 1183, 1184 (Pa.Super.2008), appeal denied, 600 Pa. 749, 965 A.2d 245 (2009) (citation omitted). Moreover, “statutes or parts of statutes that relate to ... the same class of persons or things are to be construed together, if possible.” Commonwealth v. Hansley, 994 A.2d 1150, 1152 (Pa.Super.2010) (citation omitted; internal quotations omitted). See: 1 Pa.C.S. § 1932.

The RRRI Act constitutes an ameliorative statute enacted by the General Assembly for the following purpose:

This [statute] seeks to create a program that ensures appropriate punishment for persons who commit crimes, encourages inmate participation in evidence-based programs that reduce the risks of future crime and ensures the openness and accountability of the criminal justice process while ensuring fairness to crime victims.

61 Pa.C.S. § 4502. See generally: Commonwealth v. Hansley, supra. It provides (1) that a sentencing court must designate a sentence as an RRRI sentence whenever the defendant is eligible for that designation,³ and (2) that a defendant is eligible for that designation if he has not been previously convicted of certain enumerated offenses and “[d]oes not demonstrate a history of present or past violent behavior.” 61 Pa.C.S. § 4503 (defining “Eligible offender”).⁴ Although the Act does not define the phrase “present or past violent behavior,” the trial court ruled that appellant’s prior conviction of an F2 burglary— which was not otherwise enumerated as a disqualifying offense under the RRRI statute — constituted evidence of “past violent behavior.”

As we consider the question whether the phrase “present or past violent behavior” was intended to include an F2 burglary within its scope, we first find guidance in the graduated definition of burglary as set forth in the Pennsylvania Crimes Code, which provides in relevant part:

(a) Offense defined. — A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

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(c) Grading.—

(1) Except as provided in paragraph (2), burglary is a felony of the first degree.

(2) If the building, structure or portion entered is not adapted for overnight accommodation and if no individual is present at the time of entry, burglary is a felony of the second degree.

18 Pa.C.S. § 3502(a), (c) (emphasis supplied). Thus, an F2 burglary, by definition, does not involve the risk of violence, or injury, to another person. It is solely an offense against the property rights of the owner of the subject premises.

This distinctive treatment of the two grades of burglary is consistently recognized in various sentencing related statutes. For example, Section 9714(g) of the Sentencing Code, which addresses sentencing of recidivist offenders, provides:

As used in this section, the term “crime of violence” means murder of the third degree, voluntary manslaughter, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in a another jurisdiction.

42 Pa.C.S. § 9714(g) (emphasis supplied). Thus, the General Assembly did not include all burglaries in its definition of a “crime of violence.” We further note that the statute governing a convicted defendant’s eligibility for “boot camp” distinguishes between burglary graded as a felony of the first degree and burglary graded as a felony of the second decree, with only the former rendering the defendant ineligible. See: 61 Pa.C.S. § 3903 (defining “Eligible inmate”). Finally, the Pennsylvania Crime Victims Act does not include an F2 burglary as a “personal injury crime” within its definition. See: 18 P.S. § 11.103.

Consequently, in light of the fact that the RRRI statute constitutes a remedial Act⁵ enacted by the General Assembly to provide a means for the Department of Corrections to encourage “inmate participation in evidence-based programs that reduce the risks of future crime,”⁶ and given consistent legislative distinctions made by the General Assembly in its treatment of F2 burglary offenses, we conclude that appellant’s prior F2 burglary should not have been construed as an indication of “past violent behavior” sufficient to disqualify him from an RRRI sentence.⁷

Accordingly, we vacate the judgment of sentence, and remand this case for proceedings consistent with this Opinion. Jurisdiction relinquished.

The motion for post-submission communication is granted.

BOWES, J., files a dissenting opinion.

1 . There is no specific explanation in the record for the two and one-half year lapse in time between the arrest of appellant and his guilty plea. However, the record does indicate at least one failure to appear on the part of the appellant, and a number of continuances. It bears emphasis that appellant does not assert any issue related to the time period between his arrest and the entry of his plea.

2 . See: 61 Pa.C.S. §§ 4501-4512.

3 . See: 61 Pa.C.S. § 4505(a) (sentencing "court shall make a determination whether tire defendant is an eligible offender''); 61 Pa.C.S. § 4505(c) (For an eligible offender, the sentencing "court shall enter a sentencing order that [conforms to the Act].”).

4 . While the statutory definition of "eligible offender” contains multiple categories of exclusions, the only exclusion relevant to this case is the "history” of violent behavior exclusion.

5 . It bears particular emphasis that the General Assembly has specifically instructed that, unless otherwise indicated, “provisions of a statute shall be liberally construed to effect their objects and to promote justice.” 1 Pa. C.S. § 1928(c).

6 . 61 Pa.C.S. § 4502. See generally: Commonwealth v. Main, 6 A.3d 1026 (Pa.Super.2010) ("[Pjrimary authority for execution of the RRRI program lies with the Department of Corrections and the Board of Probation and Parole.”).

7 . While we are mindful of the decision in Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307 (2008), cert. denied, - U.S. -, 129 S.Ct. 1614, 173 L.Ed.2d 1001 (2009), which is relied upon in the Dissenting Opinion of our learned colleague, we are of the view that the discussion in that case of the traditional view of burglary is inapposite to the statutory construction inquiry at issue in this case. Moreover, the Supreme Court there was addressing the situation of "an unprivileged entry into a building or structure ‘where people are likely to be found.’ " Id., 597 Pa. at 331, 951 A.2d at 321 (emphasis supplied). Here, however, by definition, the F2 classification of burglary is confined to those situations where, inter alia, "no individual is present at the time of entry." 18 Pa.C.S. § 3502(c) (emphasis supplied).